UPDATED Monday 1:18 p.m. This petition before judgment has now been docketed as 14-596.
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Lawyers for seven same-sex couples in Louisiana — some married, some seeking to marry — asked the Supreme Court on Thursday to review the case before it is decided in a federal appeals court. The case, the lawyers argued, would widen the scope of the Court’s consideration of the constitutional controversy. The new petition is here; it has not yet been formally docketed.
There is no need, the document argued, for the Court to await “further percolation of the issue in the courts of appeal.” There is now a “head-on split” among federal appeals courts, so it “would serve little utility” for the Justices to let the Louisiana case unfold in the U.S. Court of Appeals for the Fifth Circuit, where the case is now pending; a hearing has been set in the appeals court for January 9.
The Supreme Court does not often reach down to the trial court level to review a case, bypassing an appeals court, but the Court’s rules clearly allow for that and it has been done before, though not often.
Louisiana’s ban, approved by the state’s voters in 2004 with nearly eighty percent in favor, was upheld in early September by a federal district court judge in New Orleans. The judge, noting the wave of other federal court rulings striking down such bans, dismissed those as “a pageant of empathy.”
That ruling by Judge Martin L.C. Feldman was the first federal court ruling to break with other federal tribunals on the same-sex marriage question. It remains one of only three decisions in federal trial courts to uphold a ban, but the judges in the other two did not address the issue directly, finding that they had no authority to consider the issue because they were bound by a one-line Supreme Court decision in 1972 (Baker v. Nelson) rejecting a challenge to a same-sex marriage ban in Minnesota.
Already awaiting the Supreme Court are four same-sex marriage petitions from four states located in the region of the Sixth Circuit, challenging a ruling by that circuit which came after Judge Feldman’s ruling and upheld bans in Kentucky, Michigan, Ohio, and Tennessee.
The Louisiana couples’ lawyers, in urging the Supreme Court to take on their case now along with any of those it accepted from the Sixth Circuit, made four points in favor of early review of the Louisiana case:
First, the judge’s decision in favor of the ban was the first in the nation to uphold a state ban in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which set off the flurry of lower court rulings on the validity of state bans. The Windsor decision struck down a part of a federal law, the Defense of Marriage Act, that denied federal marital benefits to already-married same-sex couples. It did not settle the question of state power to prohibit such marriages.
Second, in a single case, it raises both the constitutionality of banning new same-sex marriages as well as denying recognition of existing same-sex marriages, with the couples involved directly challenging both.
Third, the case “provides an optimal vehicle to clarify growing confusion regarding the limits of judicial deference to democratic processes when the majority has denied constitutionally protected rights to members of a minority group.”
And, fourth, it offers “geographic range” as the Court considers a question of national importance. If granted review along with any cases from the Sixth Circuit, the filing said, the Court would have before it cases in states “from the Canadian border to the Gulf of Mexico.”
The Louisiana case is now before the same Fifth Circuit panel that is reviewing a case from Texas, where a federal judge struck down a state ban on same-sex marriages. The cases are due to be heard back to back on January 9.
The Supreme Court has not yet indicated when it will take its first look at the group of five new petitions on the constitutional dispute. It has complete discretion to grant some or all of the cases, or to deny all of them. The prospects for review, however, have been enhanced by the split among federal appeals courts.
If any of the cases is accepted for review by about mid-January, a final decision would be likely to emerge during the current Term, ending in late June or early July.
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